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SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK CARA MUHLHAEN, Index No. 102846/2010 Plaintiff, -against- ANDREW GOLDMAN and NEW YORK MEDIA LLC, Defendants. MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS THE COMPLAINT OR FOR SUMMARY JUDGMENT MILLER KORZENIK SOMMERS LLP 488 Madison Avenue Suite 1120 New York, New York 10022-5702 212-752-9200 Attorneys for Defendants Andrew Goldman and New York Media LLC TABLE OF CON TABLE OF AUTHORI1 BACKGROUND ‘The New York Article..... nnn The Complaint... 4 ARGUMENT. 6 I. Plaintiff's Complaint Based On Alleged Facts 1, 2, 3, 4, 5 9, 10, 11, 12 and 13 Should Be Dismissed as Non-Defamatory ANMOE THC, sosseceeseeececen eee none ae eaeren 6 A. Non-Defamatory Statements Cannot Support Plaintiff's Libel Complaint B. _Non-Actionable Opinion Cannot Support Plaintiff's Libel Complaint : C.— True Admissions Cannot Support Plains Libel Complain. ......seese ae e 9 D. —Allloged Facts 1,2, 3, 4, 5,9, 10, 11, 12 and 13, Cannot Support Plaintif’s Libel Complaint... " Alleged Fact 1 : eae ei Alleged Fact2 - 12 Alleged Fact3 ...sssssssessevsseeettsssssseeisussanseeseesnsasseesessessesseenald Alleged Fact 4 s.ccsecssseeceseseee 17 Alleged Fact 5 mI Alleged Fact 9. i 2B Alleged Fact 10 : 29, Alleged Fact 11 Alleged Fact 12. : 28 Alleged Fact 13... 231 IL Plaintiff's Complaint Based On Alleged Facts 6, 7 And 8 Should Be Dismissed As They Are Non-Defamatory And In Any Event Are Barred By The Single Instance. 32 Alleged Fact 6 secesee 33 Alleged Fact 7 23d Alleged Fact 8 cececenseneeeeennsenee : eaeeets Il Alternatively, Summary Judgment Should Be (Guunied To Deteudanie cimeicince nee nis ntneenees 36 CONCLUSION. 36 Table of Author Cases 606 W. 115" St. Corp. v. Von Gutfeld, 80 N.Y.2d 130, 589 N.Y.S.2d 825, 603 N.E.2d 930 (1992)...2-0000 cso - cesses Allen v. Gordon, 86 A.D.2d 514, 446 N.Y.S.24 48 (I" Dep't), aff'd, 56 N.Y.2d 780, 452 N.Y.S.2d 25, 437 N.F.2d 284 (1982).......00.0000 Z Seed Amelkin v. Commercial Trading Co., 23 A.D.2d 830, 259 N.Y.S.2d 396 (1* Dep't 1965), aff'd, 17 N, Y.2d 500, 267 N.Y.8.2d 218, 214 N.E.2d 379 (1966)... 32 Ark Bryant Park Corp. v. Bryant Park Restoration Con. 285 A.D.2d 143, 730 N.Y.S.24 48 (1 Dep’t 2001). sa poses ae 10 Anmstrong v. Simon & Schuster, Inc., 280 A.D.2d 430, 721 N.Y.S.2d 340 (1" Dep’t 2001)... 65 N.Y.2d 592, 493 N.Y.S.2d 1006, Arsonson v, Wiers 483 N.E.2d 1138 (1985).......-. eT Behr v. Weber, 172 A.D.2d 441, 568 N.Y.S.2d 948 (1" Dep't 1991)...cssessssseeeeeesesssneeen 3 Bernhard & Co., Inc. v. Finance Publishing Corp., 32 A.D. 2d 516, 298 N.Y.S.2d 740 (1 Dept) alld, 25 N.Y.2d 712, 307 N.Y.S.2d 220, 255 N.E.2d 560 (1969).....ccsssssereeeecseen32 Biondi v. Beekman Hill House Apt. Corp., 257 A.D.2d 76, 692 N.¥.S.2d 304 (1* Dep’t 1999), aff'd, 94 N.Y.2d 659, 731 N.E.2d 577, 709 N.Y.S.2d 861 (2000)...... 10 Bowes v. Magna Concepts, Inc., 166 A.D.2d 347, 561 N.Y.S.2d 16 (1* Dep't 1990). soon 1 Ass'n v. Chan Tsang, 254 A.D.2d 222, 679 N.Y.S.2d 54 Chinese Consol. Benevol (Dep't 1998)... Commonwealth Motor Parts Ltd. v. Bank of Nova Scotia, 44 A.D.2d 375, 395 N.Y.S.2d 138 (1" Dep't 1974), aff'd, 37 N.Y.2d 824, 377 N.Y.S.2d 482 (1975), seve Cox Broadcasting Comp. v. Cohn, 420 US. 469, 95 S.Ct, 1029, 43 L.Bd.2d 328 (1976). D’Agrosa v. Newsday, Inc., 158 A.D.2d 229, 558 N.Y.S.2d 961 (2d Dep't 1990).....s00seere032 Garfinkel v. Twenty-First Century Publishing Co., 30 A.D.2d 787, 291 N.Y.S.2d 735, (1* Dep't 1968). Golub v. Enquirer/Star Group, 89 N.Y.2d 1074, 659 N.Y.S.2d 836, 681 N.E.2d 1282 (1997). - 7 pee Gunduzv. N.Y. Post Co., 188 A.D.2d 294, 590 N.Y.S.2d 494 (1* Dep’t 1992). Immuno AG v, Moor-Jankowski, 77 N.Y.24 235, 567 N.E.2d 1270, 566 N.YS.24 906 (1991). Jung Hee Lee Han v. State of New York, 186 A.D, 24 536, 588 N.Y.S.2¢ 358 (2d Dep't 1992)... . 10-19, 27 Kamalian v. Reader's Digest Association, Inc., 29 A.D.3d 527, 814 N.YS. 261 (2d Dep't 2006)......... 8, 12-13 Kimmerle v. New York Evening Journal, 262 N.Y.99, 186 N.E, 217 (1933).sosscssssssesseesseeee7 Larson v. Albany Medical Center, 252 A.D.2d 936, 676 N.Y.S.2d 293 (3" Dept. 1998). 32 Love v. William Morrow and Co., Jnc., 193 A.D.2d 586, 597 N.Y.S.2d 424 (2d Dep't 1993)...-s.seesssseeseeeseessnse ne sessed Oliman v. Evans, 750 F.2d 970 (D.C. Cir, 1984). cane 8 O'Loughlin v, The Patrolmen’s Benevolent Assn. of the City of N.Y., Ine,, 178 A.D.2d 117, 567 N.Y.S.2d 858 (I Dep't 1991). cceessscesneee 8 Polish American Immigration Relief Committee, Inc., v. Relax, 189 A.D.2d 370, 596 N.Y.S.2d 756 (1" Dep't 1993) v..sssessssesvsssssvesnnvenees : eee o 2) Ram v. Moritt, 205 A.D.2d 516, 612 N.Y.8.2d 671 (2d Dep't 1994). - a] Rothman v. Stemberg, 207 A.D.2d 438, 61S NY S.2d 748 (2d Dep't 1994) .....eeee setae iene ced Schwartz v. Nordstrom, 160 A.D.2d 240, 553 N.Y.S.2d 684 (1 Dep't 1990)... verre 2d Steinhiber v. Alphones, 68 N.Y.2d 283, 501 N.E.2d 550, 508 N.Y.S.2d 901 (1986).........passim Di Roberts, 23 A.D.2d 693 257 N.Y.S.2d 695 (2 Dep’ 1965), alld, 17 N.Y.2d 2, 267 N.Y.S.2d 512, 214 N.E.2d 789 (1966)... i 1 ‘Twiggar v. The Ossining Printing and Publishing Co., 161 A.D. 718, 146 N.Y'S. 529 (2d Dep't 1914)... : 32 Yarmove v. Retail Credit Co,, 18 A.D.2d 790, 236 N.Y.S.2d 836 (I" Dep't 1963)....eeseeeeelO ‘Statutes New York Civil Practice Law and Rules §321 I(a(1) (McKinney 2010) seseseeeee 6, 10 New York Civil Practice Law and Rules §321 1(@)(7) (McKinney 2010). e610 New York Civil Practice Law and Rules §3211(c) (McKinney 2010) a6 New York Education Law §6951 (McKinney 2010) ........sseseeeee coos en 28-29 MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS THE COMPLAINT OR FOR SUMMARY JUDGMENT Defendants Andrew Goldman and New York Media LLC submit this memorandum in support of their motion to dismiss Plaintif’s Complaint or for summary judgment. This libel action stems from the March 2009 publication of a New York magazine article entitled ‘treme Birth.” The article explotes the controversial public debate over home versus hospital birth options through a profile of Plaintiff Cara Muhlhahn, a certified nurse midwife who rose to celebrity starring in a must-see documentary on the issue. Mentioned in publications as diverse as Voge magazine and the New York Times, this outspoken home birth advocate, practitioner and published author —with a self-proclaimed “Moses responsibility” ~ became, for many, the face of the home birth side of the debate. In complaining of a metatag posted on-line and twelve additional alleged “facts” stated in the Article (collectively, the “Alleged Facts”), Plaintiff mistakes, as defamation, divergent opinion in medical controversy — which cannot be settled by libel litigation. She also disregards that she has admitied many of those alleged “facts” in her own voice, recorded or written, thus directly refuting her own claims of falsity. As shown, the Alleged Facts challenged as defamatory and false are (i) incapable of defamatory meaning, and not libelous (Alleged Facts 1, 2,3, 4,5, 6, 7,8, 9, 11, 13), (i) non- actionable opinion (Alleged Facts 1, 2,3, 5,9, 11), (ii) barred by New York's “single instance rule’ (Alleged Facis 6, 7, 8), and/or (iv) true (Alleged Facts 3, 4, 5, 10, 11, 12, 13), or a fair characterization of the Article (Alleged Facts 1, 2).' As such, they are not actionable. Plaintifi’s Complaint should be dismissed or summary judgment should be granted for Defendants. * Should it become necessary, Defendants will show that the challenged statements were published without actual malice, the requisite standard of lability for Plaintiff, who was, at minimum, a limited purpose public figure, Asmstrong v, Simon & Schuster, Inc, 280 A.D.2d 430, 721 N.Y.$.24 340 (1* Dep't 2001). BACKGROUND Plaintiff Muhlhahn, a Certified Nurse Midwife with a thriving midwifery practice, is a home birth colebrity, having starred in an independent, influential documentary, The Business of Being Born (“BOBB”), a film that has become a must-see for mothers-to-be. Featured in a Vogue ‘magazine article, Plaintiff also authored her own book, Labor of Love: A Midwife's Memoir, and has offered her views on home birth safety, physicians and hospital delivery in news publications, radio programs, speaker panel and blogs, as well. Afi davit of Andrew Goldman, swom to August 12, 2010 (“Goldman Aff") 42-3, 8. BOBB, a “candid eye-opening documentary” on “the politics of birth in the United States; “tackles the controversial debate between at-home and hospital births,” according to the Cara Muhlhahn Midwifery website. BOBB advocates home birth, with its strong emotional, political and social underpinnings, and presents the hospital birth model as one of unnecessary medical and surgical intervention, based largely on avoiding liability. As the Cara Muhlhahn Midwifery website states, the film “reveals shocking facts regarding the historical and current practices of the modern childbirthing industry contrasted with the realities of childbirth at home.” Goldman Af. §B, n.1 and Ex. B. BOBB presents Plaintiff as the fuce of those homebirth “realities.” It showcases her as the midwife that anchors the film as a professional, caring, capable and an altogether attractive altemative to the medical morass. Goldman Aff. $9, 10 and Ex. F. According to Muhlhahn, Tam grateful for the film because it shows women there’s another viable way to give birth besides at a hospital. It opens up the dialogue about homebirth. The movie is already making a difference — all of the homebirth midwives In New York City have their phones ringing off their hooks. They"re getting calls from women who are finally tuning into their own instincts and rethinking their options instead of unconditionally trusting the hospital experience. Id, €14 and Ex. D, pp, 239-40, For Muhlhahn, “the film got the ball rolling and I'm determined to keep it rolling.” Id. at p. 243. She did so, attracting the attention of New York magazine. ‘The New York Article In March 2009, New York magazine weighed into the home/hospital birth controversy and Muhhahn’s rising notoriety. It published an article, authored by Defendant Goldman, which it entitled “Extreme Birth,” and subtitled “The fearless ~some say too fearless ~ new leader of the home-birth movement” (the “Article”), Goldman Aff. Ex. A [Ex. A thereto], C.? The Article discusses the influence of BOBB and profiles Muhthahn, her philosophy, practice and p spective. It explores the controversy over home birth versus hospital birth and the diff 1g emotional, political, social and medical points of view that drive the debate, through ‘Mubhihahn, her patients (many enthusiastic, some not), their home birth experiences (many suecessful, some unfortunate), obstetricians, and Goldman himself, as he and his wife navigated birthing options for the delivery of their son, It was apparent that most of the differing viewpoints were strongly-held, diametrically opposed, and personal. Goldman Aff. {95-6. ‘The charged nature of this debate was apparent even to Muhlhahn, who acknowledged in her book, Lubor of Love, that many still perceive her practice as “radical,” and that “[o] ne of the biggest misconceptions some doctors promote is that their patients won't be safe in the hands of midwives.” Goldman Aff. 47, Ex. D, pp. 173, 188. To fully report the debate, then, the Article gave fair coverage to Plaintiff, but could not withhold other viewpoints, including opinions from her ‘ideological adversaries. Stil, the Article offered a fair, accurate and positive portrayal of Plaintiff, and the home birth side of the controversy. Goldman Aff. $6. Among the many sources interviewed for the Article, Goldman spent hows with Plaintiff and accompanied her on some home visits to patients, Goldman Aff, #8, With her knowledge, he * As a father to be, Defendant Goldman became aware of Plaintiff when his wife became pregnant and insisted that he watch BOBB, which all their pregnant friends had seen and which was referred to simply by its acronym, He quickly perceived that there was a heightened interest of mothers-to-be in giving birth at home, a topic that he thought might interest readers, Goldman AIT. 4 2-4, recorded virtually all of her interviews. The relevant admissions Muhlhahn made to him and to the public are detailed in his accompanying affidavit, incorporated here by reference, and specitied, infra (Points ID. and II) as they relate to particular Alleged Facts, These admissions refute her allegations of falsity and are dispositive. ‘The Complaint Plaintiff Mublhahn commenced this against Defendants, the author of “Extreme Birth” and the publisher of New York magavine. In a single libel cause of action, she alleges that she was defamed by a metatag posted on-line and particular alleged so-called “facts” published in the Article, Numbered for the purposes of this motion, these challenged statements are as follows Alleged Fact | [metatag]. “Is Midwile Cara Muhlhahn Too Fearless in Her Home- Birth Advocacy?” Alleged Fact 2 [subtitle]. “The fearless-some say too fearless-new leador of the home-birth movement, Alleged Fact 3. “More than anything else, BOBB {the film The Business of Being Born] de-radicalized home birth, conflating it with garden-variety natural childbirth and allowing Mublhahn, largely unchallenged, to argue for its safety.” Alleged Fact 4. “She regularly does vaginal births after C-section at home and has even home-delivered the riskiest births, breeches and twins.” Alleged Fact 5. “But L was concerned by her lack of experience with lupus and mystified by her reaction when Robin brought up the idea of delivering with a highly recommended midwife who delivers the babies of high-risk patients at St Vincent's. Muhlhahn rolled her eyes, *You might as well go with an obstetrician,” she scoffed.” Alleged Fact 6. “But labor is an unpredictable thing, and sometimes the experience is more nightmarish than poetic. Mublhahu’s patient Sandra Garcia was one week overdue when her water finally broke on a Sunday night in early November. She labored that night and through the next day assisted by her husband, Jeff Wise, and her doula, a former NYU postpartum nurse who was now working for Muhlhahn, (Muhthahn, busy with another labor, appeared only sporadically.)” Alleged Fact 7. “The doula had somehow misjudged her progression. Still, Muhlhahn wasn't concerned.” Alleged Fact 8, * “How long is to0 long for a woman to be in labor?” Wise demanded to know when Muhlhahn finally retumed to the apartment that night, ‘Never,’ Mublhahn replied flatly.” Alleged Fact 9.“*St. Vincent's is her dump,’ says one former obstetrics resident who's treated Mullhahn's transfers. “She could say any hospital is her backup, because no hospital is ever going to deny a woman care, She'd bring her patients in, holding their hands, find out we were going to have to do a section, and then she's, cout the door. To me, that's a dump.” Other doctors on the floor have referred to her transferred patients as ‘train wrecks.” Alleged Fact 10.*Muhlhahn claims that she could have privileges at St. Vincent's as well, but she prefers not to be encumbered by the hospital's restrictions, ‘I actually like legitimacy. | don't enjoy being an outlaw,’ she says.” Alleged Fact 11. “But there are ways in which she has made herself an outlaw of sorts-by not carrying malptaetice insurance, for instance, “I think she's dangerous,’ sa member of the obstetrics staff at St. Vincent's. “You nced to be accountable. Something bad is going to happen with her approach to management. Bad things happen to all of us.” Alleged Fact 12, “Though itis required by law for every midwife in New York to have one, Mublhahn also doesn't have a signed practice agreement with a physician, a document that outlines the parameters of a midwife’s eare and the protocols under which a mother would automatically ‘risk out’ of home birth.” Alleged Fact 13. “Recently, she has more than tripled the number of births she takes on, to ten a month.” Goldman Aff, Ex A [Complaint {9]11]. Mublhahn alleges, without explanation, that these statements were made with “actual malice and/or a reckless disregard for the truth,” “reflect negatively on the Plaintif?"s performance of her occupation and are incompatible with the proper conduct of her business,” and “were and are libelous per se and disparaged plaintiff in her trade, business and professional and further brought plaintiff into public contempt.” Negating special damages, she nevertheless seeks $1 million, along with punitive damages. Id. [§ 14-16, 20-22]. * Plaintiff alleges that the Alleged Facts are ‘so egregious as to be presumed to have caused serious harm...without the need to prove special damages or economic or financial loss.” Id. ‘20. PLAINTII BASED ON ALLEGED FACTS 1, 2, 3,4, 5, 9, 10, 11, 12 AND 13 SHOULD. BE DISMISSED AS NON-DEFAMATORY AND/OR TRUE Muhthahi alleges that the Alleged Pacts disparaged her in her profession and brought her public contempt. Yet Alleged Facts 1, 2, 3, 4, 5,9, 11, 12 and 13 are not defamatory of her as a matter of law, as they are either (i) not capable of defamatory meaning or not libelous, (ii) non- actionable opinion, and/or (ii) true statements, admitted by Plaintifherself, or fair characterizations. These statements cannot support her libel cause of action. To the extent her Complaint is premised on them, it should be dismissed as a matter of law. * A, Non-Defamatory Statements Cannot pport Plaintiff's Libel Complaint To be actionable, a defamatory statement must be “of and concerning” the plaintiff. Allen v. Gordon, 86 A.D.2d 514, 515, 446 N.Y.S.2d 48 (1 Dep't), aff'd, 56 N.Y.2d 780, 452 N.Y.S.2¢ 25, 437 N.E. 2d 284 (1982)(mation to dismiss granted where publication not “of and concerning” plaintift). Because falsity is a necessary clement, it also must be premised on statements of fact. 600 W. 115th St. Comp. v. Von Gutfeld, 80 N-Y.2d 130, 139, $89 N.Y.S.2d 825, 829, 603 N.E.2d 930, 934 (1992). To be defamatory in the first instance, a statement must contain words that tend to expose the plaintiff to “hatred, contempt or aversion, or to induce an evil or unsavory opinion of [her] in the minds of a substantial number of the community.” Golub v, Enquirer/Star Group, 89 N.Y.2d 1074, 1076-1077, 659 N.Y.$.2d 836, 837, 681 N.E.2d 1282, 1283 (1997). Or it must “disparage” that * Steinhilber v. Alphones, 68 N.¥.2d 283, 501 N.E.2d 550, $08 N.Y.$.2d 901 (1986)(CPLR 321 1(a)(7) ‘motion granted where statements were non-actionable opinion); Aronson v. Wiersma, 65 N.Y.2d 592, 593- 94, 493 N.Y.S.2d 1006, 483 N.E.2d 1138, 1139 (1985)(motion to dismiss under CPLR 321 I(a}(7) granted where statements not capable of defamatory meaning); Chinese Consol. Benevolent Assn v, Chan Tsang, 254 A.D.2d 222, 679 N,Y.S.24 54 (1 Dep't 1998\(CPLR 321 I(a(1) and (7) motion granted where statements were true). plaintiff “in the way of [her] office, profession or trade.” Id. To do the latter, the words must “reflect” negatively on the plaintif’s “performance or be incompatible with the proper conduct of her business.” Golub v. Enquirer/Star Group, supra, 89 N.Y.2¢ at 1076, 659 N.Y.S.2d at 837, 681 N.E.2d at 1283. In order to so allege, the challenged words themselves must “have such a relation to the profession or occupation of the plaintiff that they directly tend (o injure [her] in respect to i.” Id. More than simply mentioning the plaintiff or generally reflecting on her character or qualities, the challenged words themselves must impugn a Particular talent or ability needed to perlorm the plaintif's job. Aronson v. Wiersma, supra, 65 N.Y.2d at 593-94, 493 N.Y.S.2d at 1007, 483 N.E.2d at 1139.° Itis for the court to decide, as a matter of law, whether the challenged words are susceptible of the defamatory meaning about Plaintiff ascribed to them. Id. If not reasonably susceptible of a defamatory meaning, they are not actionable, and cannot be made so by any strained or attificial construction. Id. Moreover, if reference to extrinsic facts is necessary to give the challenged statements defamatory import, a claim of libel must fail, where, as here, no special damages are pleaded. Steinman v, Dj Roberts, 23 A.D.24 693, 257 N.Y.S.2d 695 (2d Dept 1965), afi"d, 17 N.Y.2d 512, 267 N.Y.$.2d 512, 214 N.E.2d 789 (1966); Garfinkel v. Twenty-First Century Publishing Co., 30 A.D.2d 787, 788, 291 N.Y.S.2d 735, 757 (1" Dep't 1968)(dismissed for failure to state a cause of action), Under these principles, as detailed below, Alleged Facts 1, 2,3, 4, 5,9, 11 and 13 (Subpoint 1D) and 6, 7, and 8 (Point II) cannot support claims of libel. Accordingly, to the extent Muhthahn’s ‘Complaint is based on these statements, it should be dismissed, * Nor is a plaintif?s own reaction to the words meaningful, even though it may include “embarrassment and discomfort,” as that has no beating on reputation, damage to which is what constitutes defamation. Kimmerle v.New York Evening Joumal, 262 N.Y. 99, 103, 186 N-E, 217 (1933). B. Non-Actionable Opinion Cannot ipport Plaintiff’s Libel Complaint Statements of opinion are not actionable in defamation. This is especially so under the New York State Constitution, which accords, under Article I §8, even greater protection to speech than the U.S. Constitution. Immuno AG. v. Moor-Jankowski, 77 N.Y.2d 235, 239, 249, 566 N.Y.S.2d 906, $67 N.E.2d 1270 (1991). tis for the Court to determine in the first instance whether a challenged statement is non- actionable opinion. Steinhilber v. Alphones, supra, 68 N.Y.2d at 290, 508 N.Y.S.2d at 904, 501 N.E.2d at 553. This determination is made “on the basis of what the average person hearing ot reading the communication would take it to mean.” O’Loughlin v. The Patrolmen’s Benevolent Assn. of the City of N.Y., Inc., 178 A.D.2d 117, 118, 576 N.Y.S.2d 858, 859 (1" Dep’t 1991). As shown below, the average person would understand Alleged Facts 1, 2, 3, 5,9 and 11 to be opinion, In reaching that decision, the Court of Appeals has cited four factors to consider: (i) whether the statement has a precise meaning which is readily understood or whether it is indefinite and ambiguous, (ii) whether the statement is capable of being objectively characterized as true of false, and (iii) whether the statement, when taken in the context of the entire document or (iv) the broader social context of the circumstances, would “signal . .. readers or listeners that what is being read or heard is likely to be opinion, not fact.” Steinhilber v. Alphonse, supra, 68 N.Y.2d at 292, 501 508 N.Y.S.2d at 905 (citation omitted)(the “Steinhilber test”), See also Kamalian v. Reader's Digest Association, Inc., 29 A.D.3d 527, 528, 814 N.Y.S. 261, 263 (2d Dep't 2006). U ler this test, if a statement is “variously interpretable” or can haye one of several Meanings, it cannot be said that it has a “readily understood” meaning, signaling opinion. Ollman v. Evans, 750 F.2d 970, 980 (D.C. Cir. 1984)(factors adopted as the Steinhilber test).° Similarly, iF the ', 279 A.D.2d 186, 189 719 N.Y $.24 236, 237 (1 Dept 200 1)(statements ‘vagute, ambiguous and entiely in the eye of the beholder” are opinion. words used are rhetorical hyperbole or vigorous epithet, that signals non-actionable opinion. Polish American Immigration Relief Committee, Inc. v. Relax, 189 A.D.2¢ 370, 374, 596 N.Y.S.2d 756 (1° Dep't. 1993)(*[n]o reasonable person would conclude that... actual criminality is charged by the epithets ‘thieves’ and ‘false do-gooders™). As shown below (Subpoint D), the Article’s use of terms such as “too fearless,” “dump,” ‘train wreck,” “outlaw of sorts,” and “dangerous” (Alleged Facts 1, 2, 9 and 11) are perfect examples of such signals, Indeed, words such as those, which are loosely definable or lack clarity of meaning, render thom difficult to verify. A statement that is not verifiable is non-actionable opinion. Rothman v. Stemberg, 207 A.D.2d 438, 439, 615 N.Y.S.2d 748, 749 (2™ Dep’t 1994). And in considering the entire context, “even apparent statements of fact may assume the character of opinion, and thus be privileged, when made in public debate... or other circumstances in which an ‘audience may anticipate [the use] of epithets, fiery rhetoric or hyperbole."” Steinhilber v. Alphonse, supra, 68 N.Y.2d at 294. This test “accords with the central value of assuring “full and vigorous exposition and expression of opinion on matters of public interest.’" Immuno AG. v. Moor-Jankowski, supra, 77 N.Y.2d at 255, 566 N.Y.S.2d at 1282, $67 N.E.2d at 918 (citation omitted). Thus, a statement of “pure opinion’ ~ that is, one accompanied by a recitation of the facts upon which itis based, or which does not imply that there are undisclosed facts unknown to the reader ~ cannot be defamatory as a matter of law. Steinhilber v. Alphonse. supra, 68 N.Y.2d at 289. Under these principles, as detailed below (Subpoint D), the Alleged Facts 1, 2,3, 5,9 and HL state opinions that cannot support claims of libel. Accordingly, to the extent Muhlhahn’s cause of action is based on these statements, il should be dismissed. CC. True Admissions Cannot Support Plaintiff's Libel Complaint Although Plaintiff has the burden of proof in establishing that alleged defamatory words are false, truth is a complete defense to any defamation action. See ¢.g., Cox Broadcasting Corp. v. Cohn, 420 US. 469, 490, 95 S.Ct. 1029, 1044, 43 L.Ed.2d 328, 346 (1975). Ifthe truth of a statement is established, as here, on a motion under CPLR 32111(a)(1) and (7), dismissal of the Complaint is warranted. Chinese Consol. Benevolent Ass'n v. Chan Tsang, supra; Commonwealth Motor Parts Ltd. v. Bank of Nova Scotia, 44 A.D.2d 375, 355 N.Y.S.2d 138 (Ist Dep't 1974), affd, 37 N.Y .2d 824, 377 N.Y.S.2d 482, 339 N.E.2d 888 (1975).7 And truth need not be established “to an extreme literal degree.” Love v, William Morrow and Co,, Inc., 193 A.D.2d 586, 597 N.Y.S.2d 424 (2d Dep't 1993); Yarmove v, Retail Credit Co., 18 A.D.2d 790, 236 N.Y.$.2d 836 (I Dep't 1963). So long as the alleged defamatory material on which the action is based is substantially true, it may contain minor inaccuracies. Jung Hee Lee Han v State of New York, 186 A.D.2d 536, 537, 588 N.Y.S.2d 358, 359 (2d Dep't 1992). Yet the claim to recover damages for libel must fuil. Id Moreover, a headline is not actionable in defamation if “when read and evaluated in conjunction with the text it precedes, was a fair index of the article.” Gunduz v,. N.Y. Post Co., 188 A.D.2d 294, 590 N.Y.S. 2d 494 (1 Dep't 1992)(*Public inemy No. 1” fair index of article reporting cab driver who received most city summonses). As shown, Alleged Facts 3, 4, 5, 10, 11, 12 and 13, as indicated in Subpoint D below, are true, having been admitted by Mublhahn herself, in authenticated recorded or published statements and Alleged Facts | and 2 are a fair index of the Article. 7 Where as here, legal conclusions or factual allegations of the Complaint are refuted by affidavits and documentary evidence, they are neither prestimed to be true nor accorded favorable inference on a motion to dismiss the complaint. Biondi v. Beekman Hill House Apt. Corp, 257 A.D.2d 76, 81, 692 N.Y.S.2d 304, 308 (Ist Dep't 1999), aff'd, 94 N.Y.2d 659, 731 N.E.2d $77, 709 N.Y.S.2d 861 (2000). Instead, the eriterion is “whether the proponent of the pleading has a eause of action,” not whether he has stated one. Ark Bryant Park Corp. v. Bryant Park Restoration Comp., 285 A.D.2d 143, 150,730 N.Y.S .2d 48, 54 (ist Dep't 2001) (Citations omitted). As shown herein, Plaintiff has no viable cause of action. D, Alleged Facts 1, 2, 3, 4, 5,9, 10, 11, 12 and 13 Cannot Support Plaintiff's Libel Complaint Alleged Fact 1 (Metatag): : “Is Midwife Cara Muhlhahn Too Fearless in Her Home-Birth Advocacy?” ‘This motatag is not a statement of fact about Muhlhahn, and is not capable of defamatory meaning, It poses a thetorical question, inviting the reader to review the Article and form his or her own opinion about this subject, and is not actionable in libel, Alleged Fact 1 is not capable of defamatory meaning. The challenged question posed by its ‘own terms pertains to Muhlhahn’s home-birth “advocacy,” and is thus neither negative nor disparaging of Plaintiff or her vocation, Asking thetorically if Mublhahn is “too fearless” is not defamatory, as evidenced by the variable meanings of the word." Nor can asking whether she is “too fearless” in arguing, sponsoring or promoting a point of view about home-birth be understood to disctedit her in any way, regardless of any responsive opinion. At worst, it suggests passion and zealousness, qualities not incompatible with advocacy ~ much less, the practice of midwifery. It certainly cannot connote, to the average reader (as it must to be defamatory), an “inability to service” midwife patients, See e.g., Golub v. Enquirer/Star Group, supra, 89 N.Y.2¢ at 1076-1077. These words could not be reasonably understood to be defamatory of Plaintiff, or, as they must, to indicate on their face any injury to her or her vocation. Alleged Fact 1 ix non-actionable opinion, Even so, the term “too fearless” is neither capable of a precise meaning, nor of verification, as it must be in order for it to have the requisite falsity element for defamation under the Steinhilber test. See also p. 13, infra. What does it mean to be to0 fearless in advocacy? ‘The emblematic question presented in this metatag, thus couched in figurative language, * This is evidenced by a quick Microsoft WORD program recourse to but a few ofits many different synonyms: “intrepid,” “brave,” “courageous,” “bold,” “unafiaid,” “daring,” “plucky, “Valiant.” None are derogatory ‘audacious, gallant,” must also be viewed under the Stcinhilber test in the broader context of the home birth debate discussed in the Article. As such, the shorthand rhetorical question signals to the reader that it is opinion, not fact. Like other figurative terms and hyperbole, these statements are indicative of opinion, Polish American Immigration Relief Commitee, Inc. v. Relax, supra. And given that all the information to which it relates is disclosed in the article, itis non-actionable pure opinion, Immuno AG. ¥. Moore Alleged Fact 1 is a fair index of the Article. For the reader, then, the Article provides all the information necessary to reach an opinion about the answer to rhetorical Alleged Fact 1, As such, it is a fair indicator of the contents of the Article. Kamalian v, Reader’s Digest Assn, Inc,, supra (Doctor's Deadly Mistakes” index of article reciting malpractice history). See also pp. 13-14, infra. As a fair index, and for the other reasons stated, Alleged Fact 1 cannot support Plaintif?’s claim of libel “per se” as a matter of law. Alleged Fact 2 [Subtitle]: “The fearless — some say too fearless —new leader of the home-birth movement A libel claim based on this subtitle is similarly deficient. Alleged Fact 2 is not capable of defamatory meaning. The term “fearless,” in any of its variable meanings, is neither negative nor disparaging of Plaintiff or het vocation, and no reasonable reader could understand it to impugn her abilities, whether used alone or with the adjective “too.” See n.7, supra, Neither is calling a midwife who has concededly risen to prominence, the “new leader of the home birth movement.” Indeed, Mullhahn has herself referred to “homebirth” as a “movement,” and touted her own “notoriety representing homebirth” — thus that “movement.” ” This subtitle is simply not defamatory and cannot be actionable as libel * Thus in her book, Muhlhahn describes her newly hired assistant in her midwife practice as “quite excited about being part of the fiomebirdh movement.” Goldman Aff, 413 n3 and Ex. D, p. 124. And at @ panel discussion held to launch the publication of her book, she stated: “... | am finding this [that there tends to be a negative viewpoint towards home birth in this country] now that I am getting some notoriety representing 2 Alleged Fact 2 is non-actionable opinion. Whether someone is “fearless” or “too fearless” is imprecise and ambiguous under the Steinhilber test. See p. 11 and n.8, supra, Nor is this a statement that is capable of being proved true or false. Indeed, itis nota literal statement at all, but a loose take on the playful torm “fearless leader.” Likewise, the term “new leader of the home-birth movement” is a figurative reference to the increasing mainstream interest in home birth and those advocating at its forefront ~ exactly what Muhlhahn herself recognized in conceding her own, “notariety representing homebirth.” See p.12.n. 9, supra, Viewed in the broader social and political context of the debate over home birth and whether it should properly and safely sit alongside or inside the medical establishment, this figurative and hyperbolic subtitle signals to that reader that it is “likely to be opinion, not fact.” Steinhilber, supra. Alleged Fact 2 is sa fair index, Nevertheless, Alleged Fact 2 is not actionable in defamation as a “fair index” of the Article. Kamalian v. sader’s Digest Assn, Inc., supra. Muhthahn does not challenge as defamatory the sentences in the Article that observe that Muhthahn has become the most visible proselstizer of the home-birth movement...She calls her duties as a mouthpiece for the movement het “Moses responsibility.” And she’s hoping to grow her home-birth service to handle the increasing demand in New York, where the numbers are already overburdening the nine home-birth midwives in practice here. (emphasis supplied). Goldman Aff. $5, Ex. C p. 2. Nor does she challenge those other sentences in the Article that observe that ‘She [Muhlhahn] also doesn’t practice like a typical midwife. Personal experience has led het to dismiss many of what she calls the “myths” that are still taught in school as the bedrock of safe practice. The big babies — ten-pounders and more ~ that most obstetricians are loath to deliver vaginally, because of the risk that their shoulders will get stuck in the birth canal, are nothing more than “it challenges” to Muhlhahn, necessitating only patience. ... She’ll put herself on the line way more than most people, like taking on a birth that’s alittle more high risk than most midwives wouldn't take,” says Abby Epstein, BOBB’s director. “It's not that she’s a cowboy It’s because she wants (0 serve these couples that say, ‘T trust my body. I believe in ‘home birth.” (emphasis supplied). Id., 413 and Ex. E, File 12 starting at 2:50. this process.” She puts her ass on the line in a huge way every time she kind of steps ‘ut of bounds to help somebody. That’s just who she is.” Goldman Aff. 45, Ex. C p. 2. The term “fearless” or “some say too fearless” is a figurative way of summarizing these unehallenged observations. In the context ofa subtitle, then, Alleged Fact 2, ike the melatay Alleged Fact 1, is a fair index of the Article, particularly these unchallenged observations, in figurative, hyperbolic and non-actionable speech. These statements cannot support Plaintiffs cause of action for libel “per se.” Alleged Fact 3: More than anything else, BOBB de-radicalized home birth, conflating it with garden-variety atural childbirth and allowing Muhthahn, largely unchallenged, to argue for its safety” Alleged Fact 3 is also not a defamatory factual statement about Muhihahn. It is evident from its substance and context that it is a critical assessment of the film, BOBB, and how that file: Portrayed Muhlhahn. It is not capable of a defamatory meaning, and it is non-aetionable pure opinion, based only on disclosed facts. 11 is also true. Alleged Fact 3 is non-actionable opinion. The sentences in the Article immediately prior to Alleged Fact 3 arc unchallenged by Plaintiff and observe the impact of the film in general, noting BOBB didn’t really break news, but it did introduce the natural-birth argument to a new mainstream audience. “Nobody in Manhattan other than the real erunchy, hair underneath the arm granola types knew anything about home birth,” says Jacques Moritz, a pro-midwifery obstetrician at St. Luke-Roosevelt who was featured in the film. “he movie changed everything. I hate to say these things go into fashion, but they do.”. Goldman Aff. 45 and Ex. C p. 2. The sentences, also unchallenged by Plaintiff, immediately following Alleged Fact 3, also concern the film, summarizing what “the film seems to say" about the home/hospital birth debate, and describing how, in the author’s opinion and view, the filmmakers chose to portray Muhthahn: ‘There are only two options when it comes to childbirth the film seems to ssay, comparing shots of ecstatic mothers hoisting their babies at home with shots of women under bad hospital light screaming for rescue. 4 Mublhahn is offered up as the eminently reasonable alternative to the ‘medical mess, shown in her East Village apartment in the predawn hours, tucking her instruments into a doctor’s bag, looking like the medical pro she is, a dean’s-list graduate from Columbia's School of Nursing. (She says she had the grades for med school, but revels in her decision to skip eight years of character-warping education methods.) She looks nothing like (he hippie-midwife stereotype...” [emphasis supplied] Goldman Aff. {5 and Ex. C p. 2. This immediate context for Alleged Fact 3, as well as the larger social and political controversy referenced, signals to the reader — and should be so reasonably understood ~ that itis a critique of the film BOBB, an opinion of the film’s approach in presenting the home birth option to a viewing audience and in influencing the debate between midwifery professionals and the medical establishment with its hospital birth protocols and interventions, In that opinion, itis the film, not the Plainti ; that “de-radicalized home birth” in two ways: by equaling it with “garden-vatiety natural childbirth” and by offering up Muhlhahn, whose appearance, conduct and words themselves argued a “largely unchallenged” viewpoint for home birth safety. ‘Thus, under the Steinhilber test, all four prongs indicate that Alleged Fact 3 is an opinion: (i) the language is figurative and loosely defined and worded, it could have variable meanings, (i) itis not capable of being proved true or false, and (fi) the immediate context (discussion of the film) and (iv) the larger social context (the home-birth debate) would signal to an average reader that the statement was likely to be opinion, not fact. And, as all the facts on which the opinion is based are disclosed, itis pure opinion, not actionable in defamation. Alleged Fact 3 is not capable of defamatory meaning. Even so, nothing in Alleged Fact 3 is remotely defamatory of Muhlhahn or even slightly negative of her, It is certainly not libelous to say that the film allowed her (o argue unchallenged for home bizth safety, or that she does so. It does not, as it must, hold her up to contempt, impugn her as a midwife or indicate on its face anything incompatible with performance of her profession. To the contrary, she could not perform as she 15 does, and practice her vocation as a midwife, if she did not believe in and advocate home birth safety, or if her patients did not think she did, as well. Indeed, as shown below, she does argue for such safety in the film, and has admitted that BOBB gave her a platform to continuc to do so. Accordingly, Alleged Fact 3 is not defamatory of Muhlhahn, is not libelous, and is non-actionable opinion. Alleged Fact 3 is true. Even a cursory viewing of BOBB reveals that the filmmakers used Mubhthahn, in both her unchallenged conduct and her unchallenged statements, to present an argument for home birth safety. She is presented as a professional, carrying a doctor's bag, calm, caring and competent. She proclaims, among other things, “f am like the guardian of safety and the witness of your process,” and insists, unchallenged, that “The gist of all the studies are that home birth is safe and they have set guidelines by which you have to determine whether a persor good candidate for home birth.” Goldman Aff. 411 and Ex F starting at 28:46 and 44:58, respectively (emphasis supplied). And she presents the home birth option with a safe back up: “If you transfer [to a hospital] it's because you need [medical] interventior ” Id at 49:41. There is no doubt that BOBB, in the words of the Alleged Fact 3, “allow{ed] Muhlhahn, largely unchallenged, to argue for its [homebirth] safety.” Indeed, Mubthahn also admitted in her book Labor of Love that “I am grateful for the film [BOB] because it shows women there's another viable way to give birth besides at the hospital.” Goldman Att. {14 and Ex. D, p. 239. Mubthahn further admitted to Defendant Goldman in an in person recorded conversation that BOBB allowed her a platform to press the safety of home birth, not only in the film, but also in publie: T'm kind of starting from the ground up, but these people keep walking into my life, 80 I know call this vision, hind of like my Moses, my Moses responsibility. Like, after the movie [BOBB}, you know the movie brings notoriety. Y'm not that interested in being famous, But I do fec! that there there are important things that need to be learned and 16 explored in in childbearing and common issues, safety issues, a kind of redefinition of safety, is one of my biggest things and | feel that you know I want to do it by allowing more women to have the option. Women that want it. always say when you break down the safety equation into all the components that really that really ensure safety, i's not always an institution, and access of technology But the public view is is a little bit warped by the physician bias. [emphasis supplied] Goldman Aff. 12 and Ex File | starting at 1:17 (emphasis supplied). Indeed, throughout her book Labor of Love Mublhahn presses her point of view, unchallenged, about the safety of home birth, with such comments as “Giving birth at home is an attempt to remove the institutional agenda without compromising safety,” (Goldman Aff. 14 and Ex. D, p. 152) while in a hospital: the risks of unnecessary intervention are higher and the experience is much less empowering and satisfying for the woman and her family ...baby and mother ate exposed to more harmful germs and are more susceptible to infection.” Id, at 173. She shared this point of view of safety, also unchallenged, with the radio listening audience on The Brian Lehrer Show: Birth of a Midwife on January 8, 2009, as well: I can say that practicing home birth in the New York City area is a really safe. It's a safe thing... Most of the clients I work with when they give birth they don’t really understand that how equipped home birth midwives are to deal with emergencies, ‘experienced home birth midwives.” Goldman Aff. {16 and Ex. E, File 13 starting at 7:05. Thus, Alleged Fact 3 is true, as admitted by Mubthahn, Alleged Fact 4: “She regularly does vaginal births after C-section at home and has even home-delivered the riskiest births, breeches and_twins.” This statement likewise is not capable of defamatory meaning, is not libelous, and is also. true, It cannot support Plaintif’s cause of action. Alleged Fact 4 is not capable of defamatory meaning. There is nothing in this statement, and certainly not on its face, that disparages Plaintiff or impugns her ability to perform as a midwife. It indicates only that she has so performed, and has handled these types of births at home, It simply presents an example that relates to the immediately preceding statements in the Article {explaining how “{s]he doesn’t practice like a lypical midwife”) ~ sentences that Muhlhahn docs not challenge ~ that distinguish her practice method and philosophy. And it is summed up in the sentence of the Article —that Muhlhahn also does not challenge—that immediately follow Alleged Fact 4: She'll put herself on the line way more than most people, like taking on a birth that’s a little more high risk than most midwives wouldn’t take,” says Abby Epstein, BORB's director. Goldman Aff. 5 and Ex. C, p.3.'° Moreover, characterizing breech births (where the baby is tumed around) and twins as “the riskiest” births does not change this. “Riskiest” is figurative speech, not a statement of fact capable of verification, In the context of the home/hospital debate, which is the immediate context of this statement, whether the delivery of breeches and twins are “the riskiest births” and whether they should or should not be delivered at home, is, as laid out in the Article, a point of controversy, not a fact capable of being proved true or false in defamation. Under the Steinhilber test, it is non- jonable pure opinion, based on the facts indicated in the Article. It cannot support Plaintif?'s, cause of action in libel “per s Alleged Fact 4 is true, VBACS. Muhlhahn admitted to Defendant Goldman, in person in a conversation recorded in "” Indeed, according to Abby Epstein and BOBB's producer (television talk show host and home birth advocate Ricky Lake), Muhlhabn was “perfect” for OBB, not the least because of her singular independence: In today’s system of defensive medicine, where many physicians and midwives are forced to practice as ifa lawyer were looking over their shoulders, Cara operates by her own principles, She is tuly an endangeted breed. [Goldman Aff. $34 n.d and Ex. D, pp. xxi] connection with the Article, that she had handled vaginal births after C- sections (*VBACS”) at home “for years and years and years:” And I’ve actually had two VBACs which is Vaginal Birth After Cesarcan that that. 1 got them to a hospital in great time. Everybody's fine, but it can result in a riskier delivery and yet I've done VBACs for years and years, and years without incident... Goldman Aff, {17 and Ex. B, File 2 starting at 4:57 (emphasis supplied). As Muhthahn does not have hospital privileges (see pp. 26-27, fra), she could not have delivered in a hospital, so that the VBACS she did “for years and years, and years” had to be done at home. Certainly the term “regularly” is a fair description of her comment of “years and years, and years without incident,” and is substantially true, as it may be. Jung Hee Lee Han v State of New York, supra. Muhlhahn also admitted to Defendant Goldman, in person, in a different conversation recorded in connection with the Article, that if she had hospital privileges at St. Vincent's (which she admits she does not, see p. 26, infra), that she would have had: to abide in a hospital by their protocol, so that means that I probably can't do VBACs at all.... That's probably the singular reason why I choose not to [have hospital privileges at St. Vincent's}. Goldman Aff. 418 and Ex. E, File 9 starting at $:33 (emphasis supplied). Obviously, then, the VBACs she has handled were birthed at home. Breeches. Mublhatn likewise admitted to Defendant Goldman, in person in a conversation recorded in connection with the Article, that breech births are, in essence, risky: So, here are the questions that come up in a clinician's mind: Why was she at home with a breech? Because everyone knows that you don't do breech deliveries at home. Goldman Aff. $20 and Ex. E, File 4 starting at 1:10. And Mublhahn also stated: ---ecause typically a breech can potentially be a more complicated delivery because the hhead is larger than the butt, so the head's the last thing to come out 19 Well, the fear is that the body can come out and then the head won't make it, but there are all sorts of clinical parameters you assess when you're making that decision. Id,, Ex. E, File 3 starting at 1:20 (emphasis supplied). In light of this admission, itis, substantially true to eall a breech birth among the “riskiest births.” And Muhthahn admitted that she had handled a breach birth at home. She stated: “So, anyway, I did one breech at home for a multip [woman who had given birth before].” id Twins. As for twins, Muhlhabn admitted handling twins, and that they are considered “high risk,” in responding to an inquiry in a blog she wrote and signed for the “Ask a Midwife or Doula” section of the The Business of Being Born website: Q: Hello, Tam having twin girls, ... L would like to know what you t doing a home birth twins... s{signed] Sarah A: Well Sarah, to weigh in on your quandry takes a bit of finesse. By that I mean that usually twins are considered high risk, but there are many things to consider when wondering if vaginal birth is safe for the wins. .. There are many things to consider, but twins can be a straight forward delivery. I have been present when ‘vo sets of twins were born vaginally, simply, beautifully, and safely Sincerely, Cara Muhlhahn, CNM [emphasis supplied] Goldman Aff. €21 and Ex. G. Indeed, Mublhahn handled the birth of twins at home with Joan Bryson, another midwife whom Muhlhahn had mentioned to Goldman in her interviews (sce p. 26, infra). Bryson told Goldman about it in a conversation recorded in connection with the Article: The thing is we - I've done twins also... So if you wind up with twins and then you know, you've got twins where there is one sac and - and one placenta, I’m not delivering that patient., But if I've got, you know, the one that I had was, um, you know 2 placentas, 2 amniotic saes both exactly the same size, you know, they went before they went at term but not late and, um, and actually Cara [Muhthahn]did the birth with me and | had an assistant as well and we, we met beforehand, we discussed you know, ‘management of twins, what are the risks, that are, you know what’s more risky, What's more likely to happen and how were we going to handle it Goldman Aff. {22 and Ex. B, Pile 5 starting at 0:01 (emphasis supplied). As Alleged Fact 4 also true, Mublhahn’s libel “per se” cause of action premised on this statement should be dismissed. Alleged Fact 5: “But I was concerned by her lack of experience with lupus and mystified by her reaction when Robin brought up the idea of delivering with a highly recommended midwife who delivers the babies of high-risk patients at St Vincent's. Muhthahn rolled her eves. ‘You might as well go with an obstet Alleged Feet 5 is opinion, incapable of defamatory meaning, much less as libel. It is also true. Alleged Fact 5 is not capable of defamatory meaning or libel. There is nothing defamatory about the three sentences that comprise Alleged Fact 5. That Muhlhahn tacked experience with npus docs not impugn or condemn her in any way and casts no doubt on her competence or ability to perform as a midwife. All it indicates is that Mublhahn, like many medical doctors, does not have experience with all types of illnesses. That does not indicate in any respect that she, or they, they cannot adequately or satisfactorily perform their jobs. ‘The last two sentences reflect nothing more than in the publie debate over hospital birth or home birth, Muhlhahn is firmly entrenched on the latter side —_s0 much so that she scoffed” about a hospital birth setting, regardless of whether 2 midwife or obstetrician handled the delivery. The tension between midwives and doctors is made a point in the Article, and Muhthahn herself has been public with her frustration with doctors.'' Indicating that she has this view neither derides her, nor impugns het talent or ability to perform her "' Muhlhahn has made no seeret of her frustrations with doctors, outside of the Article. In her book, Labor of Love, she accuses them of harboring misconceptions, stating “Among the most frustrating of our hurdles is ‘American doctors’ misconceptions, because the medical field and its governing bodies... have such influence ‘over public opinion.” Goldman Att. §25 and Ex. D p.160. vocation. It does not support a libel claim. Alleged Fact 5 is non-actionable opinion, Moreover, that Alleged Fact 5 indicates that Defendant Goldman had “concer” that Mublhahn lacked lupus experience and was mystified” by her expressed comment or point of view does not escalate the effect or character of the non-defamatory underlying observations. Itjust makes clear that Alleged Fact 5 is less about Muhthahn than it is about Defendant Goldman himself, then a father-to- ‘be coming quickly to learn of the home/hospital birth debate, and tension between midwives and doctors. The use of the word “scoffed” to characterize how he viewed Muhlhahn's reaction and response is a non-verifiable figurative choice informed by Goldman's opinion and personal interpretation. Presented in that context, it signals to the average reader that it is opinion and not fact. Goldman's non-actionable pure opinion, based on what is disclosed in the Article and not indicating anything undisclosed, is not defamatory of Mublhab, Alleged Faet 5 is true, The conversation referred to in these statements in the Article took place with Muhthahn during Goldman’s midwife consultation with her during the summer of 2008. He attests that these statements accurately depicted what transpired, what Muhlhahn stated, how he understood her reaction at the time, and his concern, Goldman Aff. §23. Muhthahn later confirmed to Defendant Goldman, in person in a conversation recorded in connection with the Article, that she did lack experience with lupus: MUHLHAHN: How's Robin [Goldman’s wife] doing’? GOLDMAN: It's boy. Yes. And, I mean, if you recall, you, and we appreciate this, you didn't feel that comfortable because she was considered high risk and basically her theumatologist had sort of advised her against doing any kind of home birth thing or, so we have to get him to a high risk practice. MUHLHAHN: I know and | think that it was—I wasn't sure, like, J had never taken care of someone with her condition before and I wasn't sure whether or not we should depart from the standard of care as I'm comfortable doing other situations. Goldman Aff. 423 and Ex. B, File 6 starting at 0:49 (emphasis supplied), As Alleged Fact 5 is also 2 ‘true, Mublhahn’s libel “per se” claim premised on this statement should be dismissed. Alleged Fact 9: “St. Vincent's is her dump,’ says one former obstetrics resident who's treated Mublhahn's transfers, ‘She could say any hospital is her backup, because no hospital is ever going ¢o deny a woman care. She'd bring her patients in, holding their hands, find out we were going €o have to do a seetion, and then she's out the door. To me, that's a dump.’ Other ‘The Alleged Fact 9 group of sentences quite obviously constitute “personal opinion and rhetorical hyperbole rather than objective Fact, and thus are constitutionally protected.” Ram v. Moritt, 205 A.D.2d 516, 612 N.Y.S 8.2d 671, 672 (2d Dep't 1994). They are non-aetionable pure opinion, based on disclosed facts and opinion. Alleged Fact 9 is non-actionable opinion, Under the first prong of the Steinhilber test, the words “St, Vincent’s is her dump” and the description of her transferred patients as “train wrecks" are terms that are loosely definable or variously interpretable and thus indicative of opinion. Ollmanv. Evans, supra. They do not objectively refer to a literal “dump” or “train wreck,” but rather to something subjective, indicated by the phrase in Alleged Fact 9 “{to] me, that’s a dump” and “doctors... have referred to” her patients as “train wrecks”. See, e.g., Behr v. Weber, 172 A.D.2d 441, 568 N.Y.S.2d 948 (1* Dep't 1991)(“I think” and “I fee!” signal personal opinions). ‘They could not be reasonably be seen as an objective factual statement with a single unambiguous and precise meaning Nor, under the second prong of the Steinhilber test, are these comments capable of being proved true or false. Like other figurative terms and lnyperbole, these statements are indicative of opinion, See also Steinhilber v. Alphonse, supra (calling plaintiff a “scab” who “lacked talent, ambition and initiative” not actionable); Ram v. Moritt, supra (doctor called a “liar,” “cheat” and “debtor” not actionable); Schwartz. v. Nordstrom, 160 A.D.2d 240, $53 N.Y.S.2d 684 (1" Dep't 1990}(sharcholder accused of being a “Nazi,” not actionable), This is pure personal opinion by doctors, nowhere near as inflammatory as the opinions 23 permitted in the above cited cases. And the reader is signaled that this is opinion by the third prong of the Steinhilber test: the immediate context, the tone and apparent purpose offered in the Article. ‘The dootors are referring to their personal dealings with Muhlhahn and their own experience with her patient transfers. Again this is made clear in the Article by the obstetrics resident characterizing What he observed as it means “to me;" and by reporting in the Article the other doctors’ personal figurative shorthand of what they observed. And it is offered in the broader social context of the tension between hospital doctors and midwives over the propriety and safety of home versus hospital birthin To be sure, as Muhthahn herself has noted, a home birth patient who is transferred during labor to a hospital speaks of a complication that could not be foreseen, cannot be handled at home, and needs medical intervention.'* In such a situation the patient is in distress. And the phrase “train \wreck,” however unfortunate, has gained some curreney as a figurative opinion used by some doctors in a transfer situation. Thus, the Court could take judicial notice that the New York Times recently reported a doctor using just this metaphor: Dr. Barak Rosen, director of obstetrics at St. Luke’s-Roosevelt Hospital Center, said Tuesday that he could not support home-birth midwives because “when they come to the hospital, it's already a train wreck”{emphasis added]. Goldman Aff, G1 n.2 and Ex. 1, Likewise the sentence in Alleged Pact 9, “She'd bring her patients in, holding their hands, find out we going to have to do a section, and then she is out the door,” is a subjective view and not precise. Does that mean that Muhlhahn left her patients after bringing them into the hospital, after giving them support by holding their hands and then turning them over to obstetricians who could provide the surgical intervention (the “[caesarian] section”) they needed (and she could not peform)? Or is ita statement of frustration with the fact that these patients who need surgery were In BOBB, Muhlhahr tells her patient, “If you transfer itis not toa birthing center. If you transfer it's because you need [medical] intervention.” Goldman Aff. 411 n.2 and Ex. F 24 not being handled by a doctor at the hospital in the first place or that Mublhahn, who is not a doctor, did not stay through the surgery? Either way, it is ambiguous, and under the Steinhilber test prongs already discussed, it is pure opinion based on a disclosed observation. Alleged Fact 9 is not capable of defamatory meaning or libelous. Yet neither that sentence nor the sentence that precede it (“She could say any hospital is her backup, because no hospital is ever going to deny woman care”) is libelous of Muhlhahn, even were they factual. They do not impugn Muhlhaln in her profession or indicate anything worse than Muhlhahn is aware of when a patient needs medical intervention, will make sure to get that patient to a hospital, and leaves when she leams that surgery is required. While Muhlhahn. may find it unflattering, nothing they state impugns her ability or talent needed to practice her vocation, or is incompatible with that practice. Indeed, Muhlhahn herself admitted to Goldman that St. Vincent’s hospital was “all home birth midwives's back-up hospital...” and that “the law is that they [hospitals] have to [take transferred patients]. If I bring someone in for an emergency transfer, anyway, they have to take them there and provide care” (see p. 30, infra). And she does not dispute the statements in the Article that although she “calls Saint Vincent’s her ‘backup hospital,” her relations! with the hospital is not exactly formal.” Goldman Aff. 5 and Ex. C p. 6. Accordingly, the doctor's observation in Alleged Fact 9 that “she can say any hospital is her back-up” accords with her admissions and thus cannot possibly be defamatory or libelous, Insum, then, Alleged Fact 9 is not defamatory, and is non-actionable pure opinion that cannot support Plaintiff's cause of action for libel “per se.” Alleged Fact 10: Mubihahn claims that she could have privileges at St, she prefers not to be encumbered by the hospital's rest Jike legitimacy. I don't enjov being an outlaw," she says, Alleged Fact 10 is true, according to Muhlhahn, She admitted this to Defendant Goldman, ent's as well, but tions. "I actually 25 in person in conversations recorded in connection with the Article. She conceded: MUHLHAHN: Well, here's the thing. Different home birth midwives, yeah, we do choose to have different formal relationships, so there are a couple of home birth midwives who actually have privileges at St. Vincents. That means, they can do deliveries there. GOLDMAN: Oh, really? MUHLHAHN: Yeah. And I could do that if I wanted to, but I don't want to and 1 really can’t articulate so clearly why except for, once you are closer allied with an institutional clinical management, you're more under their thumb. (emphasis supplied). Goldman Aff. §29 and Ex. E, File 8 starting at 2:33. On adi occasion, Muhlhahn claborated: MUHLHARHN: ...We touched on this subject the other day about what it means to have privileges and why we choose not to have privileges. So I could have privileges if T wanted to at St. Vincent's Hospital. .-And when I do consults and people talk to me about that, I'm really open and up front with them about that small difference between — [name] and J, who choose not 10 have privileges, and Joan [Bryson] and [other names}, who choose to GOLDMAN: So what’ the argument against privileges? If- if you could actually - if in certain cases you'd actually be able to deliver the baby? MUHLHARN: I go back and forth all the time about wanting to do it actually. GOLDMAN: So is there an invitation from Saint Vineent’s? Do you think they'd be happy to have you? nt MUHLHAHN: Oh, yeah. They've invited us already. Here's the thing, It- more under their radar. So, Lcan give you a sp- a very specific example. If St. Vincent's is um back ~is um if they're - I have to abide in a hospital by their Protocol, so that means that I probably can't do VBACS at all, GOLDMAN: Oh. MUHLHAHN: That's probably the singular reason why I choose not to. ‘The test is all good. I like legitimacy. GOLDMAN: Yeah. Well why - why.. MUHLHAHN: I don’t enjoy being an outlaw actually. 1 - Tmean it because | was a lay midwife to begin with and that outlaw piece just did not sit comfortably with me. 26 Goldman Aff. $30 and Ex. E, File 9 starting at 4:50 (emphasis supplied). Defendant Goldman summarized Muhlhahn’s explanations of why she did not want leges ~ that she would have to abide by a hospital's protocol and would not be allowed. pri to do VBACS, and that she would be “under the thumb” of an “institutional clinical ns.” That shorthand is management” ~ as being “encumbered by the hospital’s restri impeccably fair and substantially true, as it may be, Jung Hee Lee Han v State of New York, supra. And there is no doubt that Muhlhahn stated in her own voice that “I like legitimacy” and “I don’t enjoy being an outlaw.” as reported verbatim in the Article. According, Alleged Fact 10 cannot support Plaintiff's libel “per se” Complaint, Alleged Fact 11: But there are ways in which she has made herself an outlaw of sorts-by not carrying malpractice insurance, for instance. "I think she's dangerous,” says a member of the obstetrics staff at St. Vincent's, "You need to be accountable. Something bad is going to happen with her approach to management. Bad things happen to all of us." Alleged Fact 11 is also non-aetionable pure opinion. It is based on the disclosed true fact, that Mulhhahn did not carry malpractice insurance, Alleged Fact 11 is true, The statement in the Article that Muhlhahn did not carry malpractice insurance is true. Mublhahn admitted this to the listening public on The Brian Lehrer Show: Birth of a Midwife on radio on January 8, 2009, just some 10 weeks prior to Article's publication, She told the host, and the public, quite plainly in her distinctive voice: Host: .. Cara how is the insurance situation these days? Last I heard umm hospitals, were getting rid of some of their nurse midwives even to deliver in hospitals because insurance was becoming prohibitive, Muhthahn: Are you speaking of malpractice insurance... ‘Yeah it’s pretty prohibitive but some actually CNMs [Certified Nurse Midwives] like myself choose not to carry malpractice insurance which is a very kind of an interesting stance and so it’s not cost prohibitive to me but it’s pretty expensive. Goldman Aff. $31 and Ex. E, File 13 starting at 11:48 (emphasis supplied). ry Alleged Fact 11 is non-actionable opinion. The sentences immediately preceding the first sentence of Alleged Fact 11 quote Muhlhahn as stating “I don’t enjoy being an outlaw” (See p, 27 supra). Alleged Fact 11 begins with a play on those words (“outlaw of sorts”) and under the Steinhilber test, it must be viewed in that immediate context, as well as the broader social and political home birth versus hospital birth debate ~ a midwife who lacks malpractice insurance as opposed to obstetricians who are insured. ‘The first sentence “there are ways in which she has made herself an outlaw of sorts...” is not precise and unambiguous. Clearly the term “outlaw of sorts” is figurative and not factual, unclear as to its meaning. It is hyperbole, contrasting with the earlier “outlaw” reference of being outside the hospital system — here because doctors carry malpractice insurance. An “outlaw of sorts” is not objectively susceptible of verification. Under the Steinhilber tes, it is non-actionable opinion, ‘The second sentence, a quote from an obstetrician that “I think she's dangerous” is also figurative, hyperbolic and capable of more than one meaning, based on the disclosed fact that Muhthahn does not carry malpractice insurance, and the supposition, in the last sentence, that “Bad things happen to all of us ” IL also signals, with the use of the term “I think,” that a personal and subjective opinion is being offered, not an objective fact. The third and fourth sentences of Alleged Fact L1 are continuation of that personal and subjective opinion, using similar imprecise words and phrases that lack clarity, like “you need to be accountable” and “something bad is going to happen” and “approach to management.” None of this is objectively capable of being proved true or false. Tt too is non-actionable pure opinion that cannot support a cause of action in libel. Alleged Fact 12: “Though it is required by law for every midwife in New York to have one, ‘Muhihahn also doesn’t have a signed practice agreement with a physician, a document that outlines the parameters of a midwife's care and the protocols under which a mother would automatically out"' of home birt Alleged Fact 12 is true. Under Article 140 of the New York Edueation Law, NY Educ, Law §6951, the practice of midwifery in New York required a signed “practice agreement,” defined as a written agreement with a particular type of doctor or hospital. '? It must have included prescribed items that detail the care to be provided, referral and emergency medical coverage and protocols and guidelines, including, among others, procedures when a pregnancy is not considered normal. Id. ‘Thus, a written “practice agreement,” as referred to in the Article, was required by law. Muhlhahn herself acknowledged this in her book, Labor of Love, in stating “{s]tate law requires homebirth midwives to have at lezst one doctor with whom they have a signed formal agreement to practice” and referred to such a doctor as a “backup doctor.” Goldman Aff. 433 and Ex. D, p. 121 ‘Yet Muhthahn admitted to Defendant Goldman, in person in a conversation recorded in connection with the Article, that she had no such “back up” doctor, but that she took her patients to St. Vincent's hospital. GOLDMAN: Okay. And do you have a regular back up? Is there somebody you use all the time now as your back up? Would that be valuable? MUHLHARN: ... Oh, you mean back-up midwife? GOLDMAN: No, physician. you, didn't you? They don’t call it a back up though? Section 6951 thus provided in pertinent part: 1. The practice of the profession of midwifery is defined as the management of normal pregnancies, child birth and postpartum care as well as primary preventive reproductive health care of essentially healthy women as specified in the written practice agreement, and shall include newborn evaluation, resuscitation and referral for infants. Midwifery shall be practiced in accordance with a written agreement between the midwife and (j) a licensed physician who is board certified as an obstetrician-gynecologist by a national certifying body or (ii) a licensed physician who practices obstetrics and has obstetric privileges at a general hospital (licensed under article twenty-eight ofthe public health law) or (ii) a hospital (licensed under article twenty-eight of the public health law) that provides obstetrics through a licensed physician having obstetrical privileges at such institution, The written agreement shall provide for physician consultation, collaboration, referral and emergency medical obstetrical coverage, and shall inelude written guidelines and protocols. The written agreement shall provide guidelines for the identification of pregnancies that are not considered normal and address the procedures to be followed, ‘The written ‘agreement shall also provide a mechanism for dispute resolution and shall provide that the judgment of the appropriate physician shall prevail as to whether the pregnancy, childbirth or postpartum care is normal and whether the woman is essentially healthy in the event the practice protocols do not provide otherwise. 29 MUHLHAN: Yes, they do, Well, I'm mostly taking people to St. Vincent's instead of a particular physician, Goldman Aff. $32 and Ex. E, File 10 starting at 1:42 (emphasis supplied). Not having a back up, “parti lar” physician means that Muhlhahn did not have a writ(en practice agreement with a physician that complies with the Education Law, as reported in the Article. But Mublhahn did not have a written practice agreement with St. Vincent’s Hospital either, She admitted that o Goldman as well, telling him that St. Vincent's and other hospitals are required by law to take her patients, that in that context St. Vincent's is her hospital of choice with whom she has but a “working relationship.” And as indicated above, she admits that, unlike other some other midwives, she chooses not to have privileges there (see also p. 26, supra): GOLDMAN: So, does everybody go to, you mentioned St. Vincent's, does everybody go to St, Vincent's? MUHLHARN: That's our back-up hospital and it’s all home birth midwives's back-up hospital... GOLDMAN: But other hospitals wouldn't take people? Is that right? MUHLHABN: They have to. The law is that they have to. If I bring someone in for an emergency transfer, anyway, they have to take them there and provide care. So, I've done emergency transfers to Jacobi, St. John's, and Queens; you know, it happens. But in general we have a working relationship with St. Vincent's. The perinatologist that T was referring to at St. Vincent's, you know, I send people to him for sonograms and amnios . GOLDMAN: ... So, i's aot like a formal relationship, you don't have, like, you know signed papers and say, this is MUHLHAHN: Well, here's the thing. Different home birth midwives, yeah, we do choose to have different formal relationships, so there are a couple of home birth midwives who actually have privileges at St. Vincent's, That means, they can do deliveries there. GOLDMAI Oh, really? MUHLHAHN: Yeah. Aud I could do that if I wanted to, but I don't want to GOLDMAN: it scems like in this book [Muhlhahn’s book, Labor of Love} there's a 30

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